Read an Excerpt
Mess ManagementLessons from a Corporate Hit Man
By Steve M. Cohen
AuthorHouseCopyright © 2010 Steve M. Cohen Ed.D.
All right reserved.
Chapter OneSexual Harassment: The Credit Union Mess
This was a fascinating multi-dimensional case. It started out as a straightforward sexual harassment case but, as they often do, it mushroomed into something quite a bit bigger. I was originally contacted by the CEO (Chief Executive Officer) of a $65 million credit union affiliated with a federal agency based on the East Coast. Called to the corporate offices, I was asked to conduct an investigation of several allegations of sexual harassment made by a female employee against the male CIO (Chief Information Officer).
I questioned the CEO, Joan, about the credit union's sexual harassment prevention policy, its experience with the policy, practices, organizational structure, and relationship with its board of directors, gathering information that would give me an overview of the organization. Joan had been with the credit union for ten years with her last five as its CEO. She was a CPA by training.
It appeared to me that Joan and her board had a negative, or at least a strange relationship. She told me that she was rarely invited to attend board meetings and usually found out what the board discussed by reading it in the meeting minutes. I insisted that if I were hired, I would be granted an audience with the board, as I wanted to have direct access to the board to make my report. I insisted on this audience not only because I heard this little voice in the back of my head saying something was weird here, but also because sometimes the leader of an organization can be a part of the problem. He or she can directly or indirectly enable the misbehavior to occur and/or continue. If Joan were a part of the problem, I didn't want to be let go and my report thrown into the circular file, never to be read or seen again. She wasn't happy with my request, but she agreed.
Before I go into the case, it will be helpful to understand the law and what is expected of an organization as it relates to sexual harassment. The definition of sexual harassment is deceivingly simple. It is "unwelcome, unsolicited and unreciprocated behavior of a sexual nature." The law is clear. If sexual harassment has happened in the workplace, there is a violation of one of the elements of the Civil Rights Act of 1964. However, personal interpretation of sexual harassment makes this "clear" law complicated. What is behavior of a sexual nature? Could be anything. It could be inappropriate touching, but then what kind of touching is inappropriate? Is touching a person's arm or shoulder inappropriate? Usually not but for some or in some circumstances, it could be. Is touching a woman's breast or buttocks at work inappropriate? It usually is, but in some circumstances it may have been an accident and acceptable to the person touched. Behavior of a sexual nature could be jokes told between people, pictures or "pinup" type posters on the walls of the workplace, leering or gestures. The reality is that it could be almost anything.
This leads into another complicated question: Was the behavior unwelcome? If the behavior was of a sexual nature but welcomed, then there was no sexual harassment. Yet, there is actually a situation where welcomed behavior of a sexual nature could still be sexual harassment. What about behavior that was welcomed and acceptable yesterday, but not welcomed and unacceptable the next? What about behavior that was not welcomed by one person, but the same behavior was welcomed by someone else? One can see that the situation gets complicated fast.
There are several other "problems" with the definition. One of the most important questions is: How is the behavior to be judged? This one has an interesting answer. When judging the behavior, the law requires the following question to be asked: Would a reasonable woman find the behavior to be offensive? The question is not would a reasonable man or a reasonable person find the behavior to be offensive. The salient question is would a reasonable woman find the behavior to be offensive. If the answer is yes and the behavior was unwelcome, unsolicited and unreciprocated behavior of a sexual nature, you probably have sexual harassment.
It is important to note that sexual harassment manifests itself in the workplace in three ways. There is quid pro quo sexual harassment, sexual harassment by sexual favoritism, and sexual harassment by hostile environment. Quid pro quo is a Latin word that means "this for that." We do quid pro quos all the time. For example, you go to the store and exchange money for product. Nothing wrong with that. In a context of sexual harassment, it becomes: You do a sexual favor for me, and I will do something for you. Sexual harassment by sexual favoritism is very similar. It looks like this: You do a sexual favor for me, and I will give you the favored shift, approval to attend the seminar you want to attend, or give you the job/raise you are seeking. Sexual harassment by hostile environment is a bit more complicated and the most prevalent in the workplace. It is behavior of a sexual nature that is less direct or obvious as it is behavior that creates a hostile environment. Even though it may be less threatening, it is sexual harassment just the same.
There is one more distinction in the law that you should know both for self-preservation, as well as for following this case. If quid pro quo sexual harassment or sexual harassment by sexual favoritism occurs just one time, it is sexual harassment with all the penalties and costs that go with it. If hostile work environment sexual behavior occurs just once, it is not sexual harassment. It may be tacky, unwelcome, and inappropriate, but if it occurs just once, it is not sexual harassment. In order to have sexual harassment by hostile environment, the behavior must occur in a pattern. Anything more than once is considered a pattern. Let's put this into a concrete example: Joe is the office prankster. He tells Lora a sexually-oriented and off-color joke. Lora is offended and tells him not to tell her any more of those jokes. If Joe stops, there is no sexual harassment, but if he continues, he has overridden her objections and persisted in unwelcome behavior of a sexual nature. Thus, we have sexual harassment.
It's also important to know that even if the employer organization has completed comprehensive sexual harassment prevention, at the point of receiving an allegation that someone thinks he or she has been the victim of sexual harassment, the company takes on new liability. The law requires the employer to conduct a thorough and timely investigation. Thorough means thorough—everyone related to the allegation needs to be interviewed. Timely means the investigation must start within 72 hours of management receiving notice. There is no provision in the law for how long an investigation can last, but it must start within 72 hours of the company getting notice of an allegation. The bottom line is that the employer organization must react in a thorough and timely manner. Sexual harassment situations are ones where the employer organization can get in more trouble by underreacting than by overreacting. The Department of Labor and the State Human Rights Commissions feel that employers cannot do too much to protect employees, but they can do too little. And, if they do too little, they invite great liability.
In recent years, the US Supreme Court ruled that because sexuality is so pervasive in American culture and sexual harassment in the workplace is illegal; if an employer organization has not conducted comprehensive sexual harassment prevention for their employees and the organization receives or is notified of a sexual harassment allegation which is then investigated and substantiated, the employer organization, not the harasser, is held accountable. If, on the other hand, the employer organization has conducted comprehensive sexual harassment prevention up to the point of the allegation, the employer organization is held harmless and the perpetrator is the one who is held accountable. If the employer organization has conducted comprehensive sexual harassment prevention, they are essentially judgment proof. But, if they have not conducted comprehensive sexual harassment prevention, it is very easy to beat that organization in a lawsuit.
The definition of comprehensive sexual harassment prevention should also be made clear. My definition is doing most or all of the following:
Having and distributing a sexual harassment prevention and zero tolerance policy to all staff. Conducting sexual harassment prevention training for all present employees. Providing sexual harassment prevention training to all future employees as part of their new hire orientation. Providing a constant reminder of the policy by placing a poster or reminder on employee bulletin boards or web sites. Providing an intermittent reminder by providing a "paycheck stuffer" two times a year. A mid-management commitment to zero tolerance of sexual harassment.
Remember that because sexuality is so pervasive in American culture and because sexual harassment is illegal in the workplace, the employer organization must take all reasonable steps to prevent it. If an employer organization sets the above six hurdles in place and an employee still chooses to commit sexual harassment, why should the employer be held accountable? The offending employee clearly is going against the employer's policy and should be held accountable personally.
Keeping the legal aspects in mind, back to the case. When I get to town, I start with the person who hires me (usually the leader, the CEO or board chair) to gain an insight into his or her view of "what has gone wrong" and the various elements of the allegations. The person hiring me will give me his or her take on the characters of the alleged victim and perpetrator. With regard to the perpetrator, I always ask, "Does it seem (to you) that doing what has been alleged to have occurred is a part of that person's character and reputation?" I then ask about the alleged victim's character and reputation. I am seeking insight from the person hiring me regarding the credibility of both parties. I am also seeking the level of connectedness of the leader to his or her people and their work lives. It is not unusual to find a great gulf between what the top leader thinks and the reality "in the trenches." Often, there are problems other than just the ones that brought me into the organization.
What I found in this case was that Joan (the CEO) believed that the alleged perpetrator, Tom (the CIO), was a competent and valuable part of her management team. She thought the allegations could be possible but that they were a bit overblown. She felt that many of the young girls (her word choice—very revealing) regularly wore clothes that were inappropriate for work. Joan thought the choice of dress, quite often, was too sexy and informal. She told me that she often would have to reprimand the staff directly, and one time she even had to send a girl home to change into something more professional. According to Joan, the girls usually got what they wanted or at least deserved. Wow! With an attitude like this, I was a bit surprised I was even hired to investigate. I started to think things were really bad there.
After I have a leader's overview of the allegations and a perspective on the people and situations involved, I always go to the person making the allegation for his or her side of the story. This is always step two. This is a crucial step because if things are mishandled here, liability can explode and things can get really bad. There is a tenet in management that I try to follow: "Never make bigger messes through your intervention than existed prior to you jumping in." The liability to this company already existed because they had not done comprehensive sexual harassment prevention, and they had missed their 72-hour start point for the investigation.
So, we have an organization that had not conducted comprehensive sexual harassment prevention and a CEO who demonstrated a lack of sensitivity. What happens next? After I get the lay of the land from a CEO or leader, I always go the person who made the allegation—the victim, who in this case was Sarah. She was a teller who was seeking a promotion to the information services department as she had completed her college degree in computer science. Speaking with her next was critical. Without being judgmental, without taking a stand or even hinting at a stand, I must get her story next. Think about what it would say to talk to the alleged perpetrator before speaking with the alleged victim. First of all, it could set the alleged victim on the defensive because my view could be clouded by what the alleged perpetrator said. She is the alleged victim, and I want to communicate warmth and get a complete picture of what happened from her first.
Notice that I have used the term "her" for the alleged victim and "him" for the alleged perpetrator. It could happen the other way with a woman sexually harassing a man. Sexual harassment can also occur between people of the same gender. Most often though, it occurs between a man and a woman with the man acting as the perpetrator and the woman as the victim. When it is not a male harassing a female, the question becomes: "Would a reasonable person find the behavior to be offensive?"
My next step is to interview the alleged perpetrator. I now have both sides so I start talking with potential witnesses. These potential witnesses are usually identified by the two people I have previously interviewed, the victim and perpetrator. I always ask each to provide the names of any other employee who might be able to shed any light on the matter or could corroborate anything previously alleged or asserted.
So what happened? Here is where it got juicy. There were six different allegations:
1. The rabbit ears incident: At a credit union sponsored Halloween party for the staff, Sarah came dressed in a rabbit costume that had big pointed rabbit ears. Tom approached her, touched the ears and said, "I just wanted to be able to say I touched your tips." There were no witnesses, and Tom denied making the statement. He did acknowledge that he noticed her in the costume and told me all he said to her was, "I like your tips." Sarah told her friend, Kristen, as well as her immediate supervisor, Bob, about the incident. These two individuals (witnesses) were quite convincing in their report of the incident. It was interesting and perhaps significant that Tom was alleged to have said the words, "I just wanted to be able to say I touched your tips." I discovered that almost all of Tom's inappropriate behavior revolved around locker room or street corner crass talk rather than overt actions. I believed the allegation had merit. The target, Sarah, had credibility, as did her friend and her supervisor. This behavior, coupled with other behaviors that I soon discovered, amounted to sexual harassment by hostile work environment.
2. The cell phone camera incident: Continuing to cross the line, Tom took a picture of Sarah from the front, neck to waist. Kristen actually saw the picture being taken and expressed her disapproval. She demanded that he delete the picture. Tom told Kristen that he would delete the picture, but would not show her that it was deleted from the camera phone. Then, he denied even taking any picture of Sarah's breasts when I interviewed him. Both Sarah and Kristen asserted that Tom did take the picture and refused to delete it. Joan reported to me that Tom admitted to her that he did take the picture. This allegation is substantiated. The real mistake here was Tom's refusal to delete the picture. It was possible that the picture was taken inadvertently. The situation presented an opportunity to simply apologize. Tom could have demonstrated sincere contrition, proved that the picture was deleted, and the incident could have been closed. Instead, the victim was left wondering what purpose this picture would serve, who would see it, etc. This behavior, coupled with other behavior, constituted sexual harassment by hostile work environment.
Excerpted from Mess Management by Steve M. Cohen Copyright © 2010 by Steve M. Cohen Ed.D.. Excerpted by permission of AuthorHouse. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.